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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O'Brien & Anor, R (on the application of) v Basildon District Council [2006] EWHC 1346 (Admin) (12 April 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/1346.html Cite as: [2007] 1 P & CR 16, [2006] EWHC 1346 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF | ||
JOSEPHINE O'BRIEN and CHRISTINA O'BRIEN | ||
JOSEPHINE CASEY | ||
JOHN and KATHLEEN BERRY | ||
PATRICK and MARGARET DORAN | ||
DEBORAH KILLEANEY | (CLAIMANTS) | |
-v- | ||
BASILDON DISTRICT COUNCIL | (DEFENDANT) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D. ELVIN QC and MR R. TAYLOR (instructed by Basildon District Council) appeared on behalf of THE DEFENDANT
____________________
Crown Copyright ©
The legislation.
"178(1) Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may –
(a) enter the land and take the steps; and
(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so."
"187B(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.
(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
"When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and none the less resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests. It is, however, ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances..."
"...once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the Gypsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the Gypsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular; the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate."
"It follows, in my opinion, that when asked to grant injunctive relief under section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so. Although domestic law is expressed in terms of justice and convenience rather than proportionality, this is in all essentials the task which the court is in any event required by domestic law to carry out."
Lord Steyn added, in paragraph 58:
"What in the context of the present case is required was explained by Simon Brown LJ in terms on which I cannot improve. He said, at page 1378:
'Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the Gypsy's private life and home and the retention of his ethnic identity - are at stake.'
Plainly, the protection of the relevant Convention right would not be effectively protected by leaving it to local authorities acting under section 187B(1) to consider matters of hardship under Article 8."
The decision of Basildon County Council
"The Council now needs to take a decision(s) on the most effective course of action to secure compliance with the Notices."
It said in its introduction:
"In considering whether to take action on the enforcement notices against the unauthorised development the Council must balance the public interest in securing the removal of development that has occurred in breach of planning control against the personal circumstances of the occupants of the sites (including their human rights) and the hardship which is likely to be caused. This report sets out the approaches available to the Council in dealing with the unauthorised developments on the land shown on the site plan below."
"The aim should always be to secure provision appropriate to Gypsies' accommodation needs while protecting amenity."
"The provisions of the European Convention on Human Rights should be considered as an integral part of local authorities' decision-making - including its approach to the question of what are material considerations. Local planning authorities should consider the consequences of refusing or granting planning permission, or taking enforcement action, on the rights of the individuals concerned, both Gypsies and Travellers and local residents, and whether it is necessary and proportionate in the circumstances."
"BAS S6 sets out criteria against which proposals for residential use are to be assessed. The criteria include: the need to make adequate provision for Gypsies, the need to protect the Green Belt, Gypsy status (to be demonstrated with documentary evidence, and to include indications of local connections with Basildon), and how the site location relates to locational criteria in BAS S7. Criterion (i) of BAS S7 requires applications for residential Gypsy sites to be consistent with Green Belt policies; to be within reasonable distance of a settlement for access to schools, shops and similar facilities; to have minimum impact on the Green Belt and the countryside without the need for extensive earth bunding or tree planting; to have convenient and safe access to the main highway network; and to have minimum impact on existing residential properties."
"Whilst in strict numerical terms there [are] clearly more Gypsies and Travellers in the District than there are pitches, the Council has consistently argued that demand and need are not one and the same and that other Districts should play their part in allocating land for pitches. To accept that demand must be satisfied at the point at which it arises is overly simplistic, will inevitably give rise to disproportionate site distribution and lead to overly large settlements that are unlikely to be sustainable. Accordingly, the Council has decided not to allocate any land for further Gypsy/Traveller sites in the Basildon District Replacement Local Plan."
"Although it may be the case that there is an unmet need for sites nationally and within the Eastern region as a whole, in the light of the current level of provision within the District and the approach adopted by the Local Plan to this issue, Officers do not consider that there is an unmet need for sites within the District."
This part concluded with the frank assessment:
"However, whatever the position with regard to the District's position and emerging policy guidance, it must still be acknowledged that no alternative sites appear to exist locally should the occupiers be displaced from Hovefields Drive. Members should therefore proceed on the basis that if they decide to require compliance with the enforcement notices that this will lead to the occupiers being displaced to unauthorised sites elsewhere, possibly onto the roadside, and that hardship is bound to be caused by this."
"Officers consider that, on balance, the clear planning and environmental harm which is identified above and the public interests which that represents outweighs the undoubted adverse effect and hardship which enforcing planning control and removing the occupiers from the sites will have. This has the result that it is considered that it is expedient and in the public interest to take action to seek compliance with the enforcement notices against the unauthorised developments."
"The action that the Council proposes to take must be proportionate to the breach but sufficient to secure compliance with the enforcement notice. However, if Members consider that they should uphold planning control and seek compliance with the enforcement notices, then it is also relevant to consider which method of seeking compliance is likely to be most effective."
The report said:
"The Court has to be satisfied first that the authority has properly reached a final conclusion that the Gypsies/Travellers' continued occupation of the site could no longer be tolerated in the public interest, and second that it would be appropriate to force their removal, even if the effect would be to drive them onto the roads (if no alternative sites were available) and cause hardship of various types."
Compulsory purchase of the site was considered but not seen as a likely beneficial route.
The conclusions of the report were:
"Clearly the continuing existence of the caravans, hardcore and road scalpings on the site is in flagrant breach of valid enforcement notices and is a criminal offence. The development is by definition inappropriate in the Green Belt and as such is a consideration that should be given substantial weight, and has been given such weight by the Inspector on appeal in the case of Plots A-E. The same considerations apply to Plots 1-6.
The key issue for Members to weigh in the balance therefore is whether the impact of taking action to secure compliance with the enforcement notices on the occupiers and owners of the site(s) is such that the public interest in enforcing planning control should be set aside in favour of allowing the unauthorised development to remain.
It is for Members to judge the weight that should be attached to each consideration. If they conclude that the circumstances of the occupiers, and the hardship they will suffer if enforced against, are insufficient to outweigh the upholding of the Council's and national planning policies then Members must consider what option to pursue to secure compliance with the enforcement notices."
"The general reputation of the Council could be damaged from the perception of residents...particularly those directly affected by the current issue."
"with some reluctance...direct action was the only route to be taken."
The Hatchertang decision
"In weighing them against the undoubted harm that would be caused by allowing the appeal value judgments have to be made as to the relative weight to be given to needs and outcomes which pull in opposite directions. However, ultimately I consider that the need for the planning system to recognise and meet the particular land use requirements of Gypsy families, together with the excess of demand over provision of sites in the locality, the lack of a suitable and accessible alternative site for this particular family, and the hardship and disruption to their family life which would result from a dismissal of the appeal are of overriding weight in this case"; paragraph 59.
"Some of those considerations are specific to the family involved and some are site-specific. It is possible that identical considerations may be found in other cases and that in those cases this decision may be regarded as a precedent. But, by definition, circumstances which are found to be very special, particularly those of a personal nature, will not create a precedent. Each case has to be considered on its merits and in the light of the particular relevant circumstances, and judgment has to be made in each case on the weighting to be given to those factors. While understanding the concerns of the Council regarding precedent, I do not consider that this is a factor which merits significant weight as a material consideration in this case."
Sadler's Farm decision
Basildon District Council's decision of January 2006
Circular 1/2006
"a clear and immediate need...evidenced through the presence of significant numbers of unauthorised encampments...local planning authorities should bring forward DPDs containing site allocations in advance of the regional consideration of pitch numbers."
"LPAs will be expected to demonstrate that they have considered this information, where relevant, before any decision to refuse a planning application for a Gypsy and Traveller site and provide it as part of any planning appeal documentation."
Mr Drabble's submissions
"83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.
84. The vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life."
"19. I accept the submission...that, in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights?...That inquiry must be undertaken by the decision-maker in the first place.
20. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?...The issue in such a case is not whether there is a less restrictive alternative to deportation as a means to achieve the objective. The sole question is whether deportation has a disproportionate effect on Mr Samaroo's rights under Article 8(1).
25. I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention right, the task for the decision-maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention rights on the other.
26. It is important to emphasise that the striking of a fair balance lies at the heart of proportionality...
28. Fair balance involves comparing the weight to be given to the wider interests of the community with the weight to be given to an individual's Convention rights. Some rights are regarded as of especial importance and should for that reason be accorded particular weight. Broadly speaking, the more serious the interference with a fundamental right and the graver its effects, the greater the justification that will be required for the interference."
"43. It emerges from the authorities:
(a) Article 8 is concerned to prevent intrusions into a person's private life and home, and in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered.
(d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity, and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded.
(e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the Article.
(f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered.
(g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8.
(h) The margin of appreciation may be wide when the implementation of planning policies is to be considered."
49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general.
The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary.
The question whether the permission has 'an excessive or disproportionate effect on the interests of affected persons' (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that 'It is important to emphasise that the striking of a fair balance lies at the heart of proportionality.'"
50. I am entirely un-persuaded that the absence of the word 'proportionality' in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word 'proportionality' is present in the post-Samaroo decisions and the judgments of Sullivan J in Egan and Elias J in Gosbee, but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case.
There may be cases where the two-stage approach to decision making necessarily in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straitjacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case."
"55. I agree with Pill LJ that the process outlined in the Samaroo case, while appropriate where there is direct interference with Article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conflict is between two or more groups of private interests. In such a situation, a balancing exercise of the kind conducted in the present case by the Inspector is sufficient to meet any requirement of proportionality."
This, said Mr Drabble, showed that it was a case concerning private interests and conflict.
Mr Elvin's submissions.
"92. ...In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8." [In paragraph 114, the court had said that it was not for that court to sit in judgment on decisions reached by local planning authorities which had weighed the competing interests.]
"102. ...If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.
115. The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every Gypsy family has available for its use accommodation appropriate to its needs."
"...They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the judge or to this court.
26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.
27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour the essential suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control.
28. We would add that the defendants would have attracted more sympathy from the court for their plight if they had embarked on their plans to purchase and establish a caravan site so that they could integrate with the community by taking steps to obtain a site which had a reasonable prospect of being granted planning permission, by following the proper procedures for obtaining the necessary permission and by awaiting the outcome of the planning application instead of taking the law into their own hands, flouting orders of the court and asking the court to suspend the injunction in order to relieve them of the consequences of their unlawful conduct."
Conclusions
Because there is that distinction, are there further submissions which either of you want to make in relation to the Kinneally position, as a result of what I have decided? I am not seeking submissions that I should change my mind. I am just concerned that as a matter of where the position has been left it is sufficiently clear.
You did not ask yourselves: how is the Secretary of State going to approach this? When you looked at it in January, you said to yourselves again: how does Basildon think it should resolve the conflict between these issues? It said we will resolve them in the same way. You did not say: is the Secretary of State likely to look differently on it?
That is the problem I have with your decision. I cannot see where you are going to get that argument off the ground.
That particular approach is lawful because it requires such a broad range of views to be taken into account. There are many ways that one might view, for example, the impact of a caravan on the Green Belt and public amenity, and all those sorts of factors.
In essence, my main submission is very brief, that in essence the requirement that your Lordship is seeking to impose upon a Local Planning Authority in those circumstances is not one that says that all they need to do is form their own view, and forming a view on the planning merits in an objective sense is not something that they took account of.
It is possible to form a view on the merits, particularly if it is done in the rough-and-ready way in which I have contemplated. After all, it is the sort of view which might be formed in relation to whether a case was so hopeless that costs might be awarded against or in favour of a Local Planning Authority, which authorities are quite able to consider.
I am also a little surprised to hear it submitted that the Local Authority cannot do that which the House of Lords suggests the court should do, with of course its less adequate appreciation of all the factors. So I refuse leave.